When secrecy can make us less secure

WASHINGTON — After 34 years in public service, J. William Leonard said this morning that his remarks on government secrecy would be his most candid, “a sort of ‘Leonard Unplugged.’”

The former Information Security Oversight Office director made good on his pledge, citing several instances of excessive secrecy that he said produced serious consequences, including the decision by the United States to go to war in Iraq. He also proposed a new way for government officials to look at information to determine whether it needs to be classified.

“Secrecy comes at a price — sometimes a deadly price — often through its impact upon the decision-making process,” Leonard said.

Leonard delivered the keynote address at the National FOI Day Conference, held for the first time at the new Newseum on Pennsylvania Avenue in Washington, D.C. The event is sponsored by the First Amendment Center.

Ron Collins, First Amendment scholar and organizer of the 10th annual event, introduced Leonard, saying that his remarks would relay “an old but important truth … while liberty without security is perilous, security without liberty is worthless.”

Leonard said secrecy had a role in the leadup to the Iraq war, “that tragically flawed decision to commit our national might and prestige.”

He noted that very few members of Congress, though allowed restricted access, actually read the classified 2002 National Intelligence Estimate that many cite as helping to justify going to war in Iraq. The unclassified version made available to the public, he said, was less nuanced than the classified version.

“The key judgments of the unclassified paper were missing many of the caveats that were used in the classified NIE,” Leonard said. “As concluded by the Senate Select Committee on Intelligence, removing caveats such as ‘we judge’ or ‘we assess’ changed many sentences in the unclassified paper to statements of fact rather than assessments — an egregious act since a cardinal rule of the declassification process is to ensure that it does not alter the substance of the information released.”

Leonard proposed a new balancing test as a way to combat what he called excessive secrecy in government information policy.

“I recommend that the current policy be revised so as to make the current implicit ‘balancing test’ of national security versus national security explicit in the governing order. As such, in making an original classification decision, classifiers would be explicitly required to assess the damage to national security that would arise as a consequence of withholding the information and compare it to the damage that could reasonably be expected if the information was disclosed.”

Leonard said that the balancing test of “security versus security” is weighing “what will cause greater damage to national security, the disclosing or withholding of specific information.”

He said that another basis for the Iraq war, then-Secretary of State Colin Powell’s report to the U.N. Security Council in February 2003, was an “excellent example of how even our own intelligence community can be hampered by excessive and needless classification and compartmentalization.”

“The most impressive part of [Powell’s] presentation … was a fraud” based on faulty intelligence from a source codenamed “Curveball,” Leonard said. He noted that in Bob Drogin’s book, Curveball, the Los Angeles Times reporter wrote that the information from Curveball was obtained by German intelligence officials “who simply refused to share the name” with the CIA until well after the war began. The Germans “did so simply because they could; pride of service, a form of one-upmanship, if you will.”

Although he mainly spoke about the need for more disclosure of government information, Leonard said that even in an open society, some secrecy is necessary.

“Government secrecy is an essential national-security tool that must be preserved,” he said, noting the necessity of surprise and deceit against enemies on the battlefield and in certain intelligence operations.

Leonard said government officials should learn from the conclusion drawn by the “nation’s military leaders in developing and implementing a new counterinsurgency strategy” that “the more force you use, the less effective it can be. Our nation’s bureaucracies must similarly use government secrecy more selectively and recognize that in today’s environment, less secrecy and increased transparency can, at times, be more effective in denying adversaries the ability to harm our nation.”

During the question-and-answer period after Leonard’s speech, David Westphal of McClatchy Newspapers asked what the next president could do to tilt the secrecy vs. openness pendulum more toward openness.

Leonard’s advice was to make openness a priority of the administration and to move quickly before bureaucratic inertia sets in.

This year’s FOI conference, “Toward a More Open Government: Opportunities & Obstacles,” is co-sponsored by Sunshine Week, and other participating organizations include the American Library Association, the Sunshine in Government Initiative, OpenTheGovernment.org and the Coalition of Journalists for Open Government.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

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1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

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State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
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